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Subban Chetty and ors. Vs. Latchmi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in3Ind.Cas.206
AppellantSubban Chetty and ors.
RespondentLatchmi Ammal
Excerpt:
civil procedure code (act xiv of 1882), section 373 - application for leave to withdraw ft suit with liberty to briny a fresh suit--order of court allowing the with-drawl, hut refusing permission to sue again--petitioner nut informed of the proposed order of court--practice. - .....applied under section 373, civil procedure code, to withdraw their suit with permission to bring a fresh suit. the proper order on such an application was either an order refusing it or an order in the terms as prayed for. the district munsif, however, passed an order to the effect that he allowed the withdrawal, but did not grant permission to bring a fresh suit. this is not, in my opinion, an order which he was competent to pass on the petition presented to him. the district munsif then proceeded to judgment and said that the plaintiffs had applied to withdraw, that they had been allowed to do so, that permission to bring a fresh suit was not granted and that plaintiffs should pay the costs. it does not appear-and it is not alleged before me--that before passing judgment the district.....
Judgment:

Munro, J.

1. The plaintiffs applied under Section 373, Civil Procedure Code, to withdraw their suit with permission to bring a fresh suit. The proper order on such an application was either an order refusing it or an order in the terms as prayed for. The District Munsif, however, passed an order to the effect that he allowed the withdrawal, but did not grant permission to bring a fresh suit. This is not, in my opinion, an order which he was competent to pass on the petition presented to him. The District Munsif then proceeded to judgment and said that the plaintiffs had applied to withdraw, that they had been allowed to do so, that permission to bring a fresh suit was not granted and that plaintiffs should pay the costs. It does not appear-and it is not alleged before me--that before passing judgment the District Munsif informed the plaintiffs of the way in which he proposed to deal with their application to withdraw. If the District Munsif had done so and the plaintiffs had then said that they would withdraw in any case, then there would be no reason to interfere. But the plaintiffs are certainly entitled to have had the option given to them either to go on with the suit or to withdraw unconditionally. The order of the District Munsif is set aside and he is directed to dispose of the suit according to law. Costs will abide the event.


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